********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
May 9, 2007
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Joel Abraham
1869 E 23rd Street
Brooklyn, NY 11229-1528
RE: EB-07-TC-1228
Dear Mr. Joel Abraham:
This is an official CITATION, issued pursuant to section 503(b)(5) of the
Communications Act of 1934, as amended (the Act), 47 U.S.C. S: 503(b)(5),
for violations of the Act and the Federal Communications Commission's
rules that govern telephone solicitations and unsolicited advertisements.
As explained below, future violations of the Act or Commission's rules in
this regard may subject you and your company to monetary forfeitures.
It has come to our attention that your company, acting under your
direction, apparently sent one or more unsolicited advertisements to
telephone facsimile machines in violation of Section 227(b)(1)(C) of the
Communications Act, as described in the attached complaint(s). Section
227(b)(1)(C) makes it "unlawful for any person within the United States,
or any person outside the United States if the recipient is within the
United States . . . to use a telephone facsimile machine, computer, or
other device to send an unsolicited advertisement to a telephone facsimile
machine." As relevant here, an "unsolicited advertisement" is "any
material advertising the commercial availability or quality of any
property, goods, or services which is transmitted to any person without
that person's prior express invitation or permission." Under Commission
rules and orders in effect during the relevant period here, the Commission
considered an established business relationship between a fax sender and
recipient to constitute prior express invitation or permission to send a
facsimile advertisement. Mere distribution or publication of a fax number,
however, does not establish consent to receive advertisements by fax.
If, after receipt of this citation, you or your company violate the
Communications Act or the Commission's rules in any manner described
herein, the Commission may impose monetary forfeitures not to exceed
$11,000 for each such violation or each day of a continuing violation.
You may respond to this citation within 30 days from the date of this
letter either through (1) a personal interview at the Commission's Field
Office nearest to your place of business, (2) a written statement, or (3)
a teleconference interview with the Commission's Telecommunications
Consumers Division in Washington, DC. Your response should specify the
actions that you are taking to ensure that you do not violate the
Commission's rules governing telephone solicitation and unsolicited
advertisements, as described above.
Please contact Delores Browder at (202) 418-2861 to arrange for an
interview at the closest field office, if you wish to schedule a personal
interview. You should schedule any interview to take place within 30 days
of the date of this letter. You should send any written statement within
30 days of the date of this letter to:
Kurt A. Schroeder
Deputy Chief
Telecommunications Consumers Division
Enforcement Bureau
Federal Communications Commission
445-12th Street, S.W., Rm. 4-C222
Washington, D.C. 20554
Reference EB-07-TC-1228 when corresponding with the Commission.
Reasonable accommodations for people with disabilities are available upon
request. Include a description of the accommodation you will need
including as much detail as you can. Also include a way we can contact you
if we need more information. Please allow at least 5 days advance notice;
last minute requests will be accepted, but may be impossible to fill. Send
an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs
Bureau:
For sign language interpreters, CART, and other reasonable accommodations:
202-418-0530 (voice), 202-418-0432 (tty);
For accessible format materials (braille, large print, electronic files,
and audio
format): 202-418-0531 (voice), 202-418-7365 (tty).
Under the Privacy Act of 1974, 5 U.S.C. S: 552(a)(e)(3), we are informing
you that the Commission's staff will use all relevant material information
before it, including information that you disclose in your interview or
written statement, to determine what, if any, enforcement action is
required to ensure your compliance with the Communications Act and the
Commission's rules.
The knowing and willful making of any false statement, or the concealment
of any material fact, in reply to this citation is punishable by fine or
imprisonment under 18 U.S.C. S: 1001.
Thank you in advance for your anticipated cooperation.
Sincerely,
Kurt A. Schroeder
Deputy Chief, Telecommunications Consumers Division
Enforcement Bureau
Federal Communications Commission
Enclosures
47 U.S.C. S: 227; 47 C.F.R. S: 64.1200. A copy of these provisions is
enclosed for your convenience. Section 227 was added to the Communications
Act by the Telephone Consumer Protection Act of 1991 and is most commonly
known as the TCPA. The TCPA and the Commission's parallel rules restrict a
variety of practices that are associated with telephone solicitation and
use of the telephone network to deliver unsolicited advertisements,
including fax advertising. We refer in this citation to the Commission's
rules as they existed at the time of the violations in this matter.
Revised rules in this area took effect on August 1, 2006. 47 U.S.C. S:
64.1200(a)(3); Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991 - Junk Fax Protection Act of 2005, Report and Order
and Third Order on Reconsideration, 21 FCC Rcd 3787 (2006) (2006 TCPA
Report and Order).
We have attached 1 complaint at issue in this citation. The complaint
addresses a facsimile advertisement that contains the telephone number
718-360-0971, which your business utilized during the time period at
issue.
47 U.S.C. S: 227(b)(1)(C); see also 47 C.F.R. S: 64.1200(a)(3) (providing
that no person or entity may . . . use a telephone facsimile machine,
computer, or other device to send an unsolicited advertisement to a
telephone facsimile machine). Both the TCPA and the Commission's rules
define "telephone facsimile machine" as "equipment which has the capacity
to transcribe text or images, or both, from paper into an electronic
signal and to transmit that signal over a regular telephone line, or to
transcribe text or images (or both) from an electronic signal received
over a regular telephone line onto paper." 47 U.S.C. S: 227(a)(2); 47
C.F.R. S: 64.1200(f)(8). The Commission has stated that "[t]he TCPA's
definition of `telephone facsimile machine' broadly applies to any
equipment that has the capacity to send or receive text or images." Thus,
"faxes sent to personal computers equipped with, or attached to, modems
and to computerized fax servers are subject to the TCPA's prohibition on
unsolicited faxes. . . [although] the prohibition does not extend to
facsimile messages sent as email over the Internet." Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, Report and
Order, 18 FCC Rcd 14014, 14131-32 (2003) (2003 TCPA Report and Order).
47 U.S.C. S: 227(a)(4) (1991); 47 C.F.R. S: 64.1200(f)(10) (2003); see 47
U.S.C. S: 227 (a)(4) (2005); 47 C.F.R. S: 64.1200(f)(13) (2006) (amending
the definition of "unsolicited advertisement" to specify that prior
express invitation or permission may be "in writing or otherwise").
See Rules and Regulations Implementing the Telephone Consumer Protection
Act of 1991, Memorandum Opinion and Order, 10 FCC Rcd 12391, 12405 (1995)
(1995 TCPA Reconsideration Order). The Junk Fax Prevention Act of 2005,
Pub. L. 109-21, 119 Stat. 359 (2005), and the Commission's parallel rules,
which took effect August 1, 2006, further specify the conditions under
which an established business relationship provides an exception to the
prohibition on unsolicited fax advertising.
1995 Reconsideration Order, 10 FCC Rcd at 12408-09; see also 2003 TCPA
Report and Order, 18 FCC Rcd at 14128 (concluding that mere publication of
a fax number in a trade publication or directory does not demonstrate
consent to receive fax advertising).
Federal Communications Commission
2
2
Federal Communications Commission
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554